Farber v Jefferys |
2011 NY Slip Op 51966(U) [33 Misc 3d 1218(A)] |
Decided on November 2, 2011 |
Supreme Court, New York County |
York, J. |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
As corrected in part through November 22, 2011; it will not be published in the printed Official Reports. |
Celia Farber, Plaintiff,
against Richard Jefferys, Kevin D. Kuritsky, James J. Murtaugh M.D., Defendants. |
In this lawsuit, journalist Celia Farber sues three defendants —
Richard Jefferys, Kevin D. Kuritsky, and James J. Murtaugh M.D. — for defamation.
Defendant Richard Jefferys made a pre-Answer motion to dismiss on several grounds; Farber
opposed the motion. In an earlier decision, the Court converted the motion to one for summary
judgment, and afforded the parties the opportunity to submit additional papers and argue the
converted motion. Now, after careful consideration, the Court grants the motion and dismisses
the action as it applies to Jefferys.
In the 1980s, doctors in the United States, France and elsewhere became aware of what we now refer to as AIDS, as an illness of unknown origin which broke down the immune system and had an extremely high fatality rate. Ultimately, those affected did not die of AIDS but of infectious illnesses such as Kaposi's sarcoma ("ks") and pneumocystis carinii pneumonia [*2]("pcp"), which their compromised immune systems could not fight. Because the illness causing the immunodeficiency could not be identified, doctors had no known way to fight it. In the United States the condition initially spread predominantly through the gay male community in California and New York, causing some medical researchers in this country to suspect that it was a virus which spread, at least in part, through sexual intercourse. Subsequently it was discovered that the condition had affected some hemophiliacs who took Factor VIII, which helped their blood to clot and was culled from a variety of anonymous blood donors. By this time, there were also reports of similar symptoms among the Haitian immigrant community in the United States, intravenous drug users and the infant children of affected mothers. Moreover, the condition was also reported in other countries, where it was spreading among different sections of the population. This increased the belief of many that they were dealing with a virus.
Ultimately, prominent researchers at the Pasteur Institute in France and the National Cancer Institute ("NCI") in the United States announced that the condition, by then called AIDS, was caused by an infectious virus — in particular, a retrovirus which they dubbed human immunodeficiency virus ("HIV"). [FN1] A retrovirus, which contains viral RNA, transcribes itself into the host's DNA, enabling the viral RNA to become DNA and take up residence in the host's genetic material. In the case of HIV, the retrovirus transcribes itself within the CD4 positive T cells ("T cells"), white blood cells responsible for the immune system; once transformed into DNA, the virus creates more virus instead of normal T cells and thus begins to break down the immune system. Not only that, but researchers concluded that HIV was a type of retrovirus called a lentivirus, which lies dormant in an infected person's system for a while before it becomes active. Because of their long incubation period lentiviruses can deliver more genetic material into the DNA and can also replicate in non-dividing cells.
Over the years, numerous AIDS-related organizations have emerged which educate people about AIDS and provide support services and other resources to HIV positive individuals. Two of these entities are especially relevant here. First is the Elizabeth Glaser Pediatric Aids Foundation ("Pediatric AIDS Foundation") (www.pedaids.org), which has the stated goal of preventing pediatric infection and eradicating pediatric AIDS by advocacy and by research, prevention and treatment programs. Pediatric AIDS Foundation supports the use of antiretroviral medications by HIV positive women during their pregnancy and by both the mothers and children after the pregnancy. The second organization is Treatment Action Group ("TAG") (www.treatmentactiongroup.org), a nonprofit foundation based in New York with which defendant Jefferys is affiliated. In 1992, several members of the activist organization ACT UP formed this spin off organization to advocate for and evaluate the quality of medical research and [*3]the efficacy of treatments. TAG describes one of its primary focuses as the development of vaccines against HIV and better antiretroviral treatments for HIV. Another important goal of TAG is to enable greater access to treatments aimed toward stabilizing or curing those with HIV/AIDS. [FN2] Pharmaceutical companies which manufacture these antiretroviral medications donate money and/or medications to both organizations.
Defendant Jefferys, now at TAG, has long been involved in HIV/AIDS related advocacy work. Initially he volunteered at the AIDS Treatment Data Network ("the Network"), where he prepared a study on State and Medicaid programs and the extent to which they enabled greater access to HIV/AIDS treatments. He also studied experimental treatments and treatment trials in the publications Treatment Guide and The Treatment Review. Before joining TAG, he worked on projects, from an advocacy and evaluative perspective, which related to treatment access and to the development of an AIDS vaccine. Today, as the Coordinator of TAG's Michael Palm Basic Science, Vaccine and Prevention Project, defendant Jefferys critiques vaccine and treatment interruption research and also writes about issues related to this and other issues which he has studied. Among these and other responsibilities, he has testified about relevant topics at FDA committee hearings and he served on the Track A committee for the international AIDS Conference in Toronto in 2006.
As Jefferys points out in his affidavit, an important part of AIDS research relates to the
reduction of mother-to-child transmission of HIV. A 1994 study, the results of which are
documented in a New England Journal of Medicine article which Jefferys annexes to his papers,
indicated that the use of zidovudine, or azidodeozythymidine (more commonly known as AZT)
during pregnancy reduced the risk of transmission of the virus to the baby by 67%. A 1999 study,
which Jefferys also annexes, concluded that the drug nevirapine also is successful in preventing
mother-to-child transmission of HIV.[FN3]
II.The HIV Dissenters and Peter Duesberg
By far the largest segment of the established medical, scientific and advocacy community has embraced the idea that HIV is an infectious lentivirus which causes AIDS and also accepts that the medications used to treat HIV-positive patients and prevent mother-to-child transmission are, to date, the most effective approaches to managing HIV and AIDS.[FN4] Among those who hold to this belief are governmental agencies in the United States such as the National Institute of Health ("NIH") and the CDC, Nobel Prize winners in the relevant fields of study, and the overwhelming majority of AIDS-related organizations both here and abroad. However, there [*4]have always been HIV dissenters[FN5] who have questioned the premise that AIDS is caused by a virus. Some of these dissenters contend that individuals afflicted with AIDS have impaired immune systems due to their lifestyle choices — in particular, the promiscuous sexual habits of gay men who visited unsanitary bathhouses; and the use of recreational drugs such as heroin, accounting for the spread of AIDS among intravenous drug users, and poppers, or amyl nitrates, which allegedly enhanced sexual pleasure but had the potential to cause neurological damage or other problems when overused — or to malnutrition or unsanitary living conditions. They claim that, at worst, HIV is a harmless passenger virus. Moreover, they often espouse the belief that the toxic drugs used to treat HIV and AIDs — including AZT and the anti-retroviral "cocktails" which consist of more than one HIV medication — themselves break down the immune system and in some cases actually cause AIDS.
Though the medical establishment dismisses most of these individuals as fanatics or conspiracy theorists, some HIV dissenters have better pedigrees. Among the most prominent is Peter Duesberg, Ph.D., a Professor of Cellular and Molecular Biology at the University of California at Berkeley. Though not a party to this lawsuit, Dr. Duesberg ("Duesberg") is inextricably intertwined with it. Prior to 1987, Duesberg was a rising luminary much admired in his field. In the 1970s, he conducted groundbreaking research on oncogenes and cancer. As a result, he received a prestigious seven-year Outstanding Investigator Grant ("OIG") from NIH in 1985 and in 1986, at the age of 50, became one of the youngest scientists to be inducted into the National Academy of Sciences.
Shortly thereafter, in 1987, Duesberg published a 22-page article in the publication Cancer Research in which he criticized the cancer research community and its ideas on retroviruses, including ideas he had helped introduce into the mainstream years earlier. In the course of that article he stated that HIV was a benign passenger virus incapable of causing AIDS. Over the years, he has frequently and publicly reiterated this belief, and has applied for numerous research grants to investigate his theory. In large part due to his statements about HIV and AIDS, Duesberg's reputation has ebbed considerably over the years. His OIG grant was not renewed and he has had difficulty obtaining other grants to test his theory. He also has had difficulties getting his writings published in academic journals, which require peer reviews.
In addition, Duesberg has inspired rage among many in the HIV/AIDS community. Among
other reasons, in 2000 Duesberg and other scientists and medical researchers visited Thabo
Mbecki, then the President of South Africa, in an advisory capacity. At the conference, Duesberg
encouraged Mbecki to declare that HIV does not cause AIDS and that AIDS was not a problem
in South Africa, and to turn away humanitarian organizations which offered [*5]antiretroviral medications to those in his country who lacked access
to them. As Jefferys notes, a study conducted by the Harvard School of Public Health estimated
that 300,000 or more lives were lost between 2000 and 2005 due to Mbeki's decision, and that
approximately 35,000 babies were born with HIV due to the decision to restrict the availability of
nevirapine to pregnant HIV positive women between June 2000 and December 2002. Around the
time of this controversy, 5,000 scientists, researchers and others drafted and signed the Durban
Declaration, which states, among other things, that "evidence that AIDS is caused by [HIV] is
clear-cut, exhaustive and unambiguous" and that AIDS patients, "regardless of where they live,
are infected with HIV." The Durban Declaration (annexed as Exh. D to Jefferys affidavit).
III."Out of Control"
One journalist who has covered Duesberg with unabashed admiration is plaintiff Celia Farber. Farber began her career in journalism in the 1980s as a reporter for Spin. From 1986 to 1994, she wrote a column for Spin about the emerging specter of AIDS which she called "Words from the Front." Complt ¶ 10. It was while writing this column that Farber first interviewed Duesberg. According to the complaint, she was the second journalist in the United States to interview him. Compt ¶ 10. Over the years she has continued to cover Duesberg's theories and to write about problems with antriretroviral drug studies. Though Farber has written about high profile subjects other than HIV and AIDS for national and international journals, see Complt ¶¶ 12-13, she is best known for her sympathetic coverage of Duesberg and the HIV dissenters. In 1994 she participated in a panel discussion on the subject at the American Association for the Advancement of Science, with Dr. Kary Mullis and others.[FN6] Complt ¶ 13. She has lectured around the world, and her writings are used in college media and science courses. Complt ¶ 13.
Due to her coverage of Duesberg and his positions, Farber has incurred the wrath of many in the traditional AIDS medical, scientific, academic and activist community, who associate her with the dissenters. Farber claims that she is neutral, but that what she calls "the HIV theory" has been accepted without question and the problems with HIV treatment minimized. As a result, she states, other credible theories, such as Duesberg's, have been ignored. She views it as her job as a journalist to report the alternative point of view. However, as Jefferys states, the traditional HIV/AIDS community contends "there is no . . . controversy within the worldwide scientific community. HIV is accepted to be the causative agent of AIDS." Jefferys Aff. at ¶ 20. Because she contends there is a legitimate alternative viewpoint, in the eyes of the traditional HIV/AIDS community Farber also is a dissenter whose ideas are dangerous.
Similarly, Farber shows no love for the traditional HIV/AIDS community. Her writing regularly discusses its members with disparagement even as she writes about Duesberg with enormous respect. For example, at one point in the Harper's article which this Court describes below, Farber refers to members of Pediatric Aids Foundation and others as "so-called community AIDS activists" who "were sprung like cuckoo birds from grandfather clocks . . . ." Later, she refers to the "embarrassments" of the "HIV hypothesis" (emphasis supplied) which she alleges that Duesberg has carefully exposed in his papers and his trade book.
In March 2006, Farber wrote an article for Harper's magazine entitled "Out of Control: [*6]AIDS and the Corruption of Medical Science" ("Out of Control").
According to Farber, the article was meticulously fact-checked by Harper's staff prior to its
publication. She states that she originally proposed an article about Duesberg's cancer research
"and the abuses he has suffered as a scientist." Complt. "Out of Control" starts with the tragic story of Joyce Ann Hafford, a HIV-positive pregnant
woman who was prescribed nevirapine to reduce the risk of transmission of HIV to her child.
The clear suggestion is that, in their eagerness to recruit her for a nevirapine trial at the
University of Tennessee Medical Group Ms. Hafford's doctors may not have investigated her
medical condition, including her HIV status, fully. Ms. Hafford's health deteriorated precipitously
under the nevirapine treatment regimen, yet she was not taken off the drug until four days before
she gave birth. Ms. Hafford gave birth to an HIV-negative son, Sterling, on July 29, 2003.
However, she died a few days later. Farber alleges that the study in which Ms. Hafford
participated ultimately was suspended because of its multiple instances of gross toxicity
— one of Farber's many statements deemed erroneous by the article's detractors.[FN8] Farber also questions Ms.
Hafford's HIV diagnosis, stating that a positive test result is often wrong. This, too, is deemed
erroneous by the article's detractors.
In the next section of the article, Farber compares the study which included Ms. Hafford
— a United States-based study of long term treatment with nevirapine — to the
Ugandan drug trials of single dose nevirapine as a means of preventing mother-to-child
transmission. In Uganda, Farber claims, there were numerous record keeping errors. Among
other things, the records did not always note who took nevirapine and who took AZT, the
baseline drug. Farber further criticizes the use of AZT as a baseline drug, arguing that a placebo
would have given the researchers a more objective measurement.[FN9] She states that in their rush to find new HIV
treatments, pharmaceutical companies cut corners and commit record keeping errors which the
government overlooks due to the strength of the pharmaceutical lobby. She suggests that
Pediatric AIDS Foundation, which has supported the distribution of single dose nevirapine in
Africa, overlooks these problems because of its relationship with pharmaceutical companies.
In this section "Out of Control" recounts the story of a NIAIDS (National Institute of [*7]Health's Division of Allergy and Infectious Diseases) employee,
Jonathan Fishbein, who refused to reprimand an NIH Division of AIDS (DAIDS) branch chief
who attempted to revise a safety report on Ugandan nevirapine trial to reflect alleged deficiencies
in and problems with the trial. Ultimately, Fishbein feared his job was in jeopardy and sought
whistleblower protection. The article suggests that DAID's efforts to push through approval of
nevirapine despite any problems with the drug trial is typical of the government's approach to
HIV and AIDS related treatments.
Then, Farber's article shifts to the final and most criticized portion of her article. This
section, in expanded form, was the subject of the original piece; she states that Harper's included
the abridged and edited version "[t]o illustrate the punitive culture of NIH. . . ." Complt
¶15. Here, she writes admiringly of Duesberg and discusses his belief that HIV does not
cause AIDS. Duesberg, she avers, has pointed out legitimate problems with the HIV "theory."
However, she states, his work has been ignored and he himself marginalized almost to obscurity
in his field because to consider his theories would threaten the profitability of pharmaceutical
companies, to which AIDS groups and the government are beholden. She suggests that HIV is a
fabricated illness, too profitable to the pharmaceutical companies to be discarded.
Not surprisingly, Farber's article generated a storm of outrage among the traditional
HIV/AIDS community. The fact that "Out of Control" was published in Harper's, a well
respected magazine, was especially upsetting to the media. Columbia Journalism Review
criticized Harper's decision to give "so much legitimacy . . . to such an illegitimate and
discredited idea." (Beckerman, Gail. "Harper's Races Right Over the Edge of a Cliff." Columbia
Journalism Review March 8, 2006.) Richard Kim of The Nation stated, "It's a shame that a
magazine as well respected as Harper's has shirked its duty to report on [important issues relating
to AIDS] and instead published Farber's article." (Kim, Richard. "Harper's Publishes AIDS
Denialist." The Nation, blogsite, posted 03/02/06). Kim also quoted Healthgap, an AIDS and
human rights organization based in the United States, which called the article inaccurate and
decried Harper's for stooping to a new low by publishing it. As a New York Times' article
annexed to Jefferys' original motion papers noted, some readers on Poz magazine's website
contained rebuttals to the article (Miller, Lia. "An Article in Harper's Ignites a Controversy Over
H.I.V." New York Times March 13, 2006); the rebuttals, among other things, accused Farber of
(1) lying, quite possibly for racist reasons (2) stealing the name ACT UP, participating in
offensive demonstrations against people with AIDS and having anti-gay motives for her writings
and (3) using the wrenching story of medical negligence against Ms. Hafford as a launching pad
for her "crackpot" theories. The Times article also noted that many scientists found that the
article was poorly fact-checked and that, as a result, included glaring errors. (Id.) Gregg
Gonsalves, who was then director of the Gay Men's Health Crisis, compared the decision to
publish Farber's article to "giving the folks at the Discovery Institute a place to expound upon the
science' of intelligent design, Charles Davenport a venue to educate us about the racial inferiority
of the Negro or Lyndon LaRouche a platform to warn us about aliens, bio-duplication, and
nudity." (Quoted in Beckerman, Gail. "Harper's Races Right Over the Edge of a Cliff." Columbia
Journalism Review March 8, 2006).
Not long after Farber's article appeared, "56 Errors," or "Errors in Celia Farber's March 2006
article in Harper's Magazine" ("56 Errors") was made available on the internet and was [*8]disseminated in other ways as well. See Complt ¶ 16. The
authors included Dr. Robert Gallo, see supra p.2 n1; Nathan Geffen of the South Africa-based
Treatment Action Campaign; Gregg Gonsalves; Dr. Daniel R. Kuritzkes, Director of AIDS
Research at Brigham and Women's Hospital and at the time an associate professor at Harvard
Medical School[FN10];
Bruce Mirken of the Marijuana Policy Project; John P. Moore, Ph.D., a microbiology and
immunology professor at the Weill Medical College of Cornell University; Jeffrey T. Safrit,
Ph.D., of Pediatric AIDS Foundation; and defendant Jefferys. The document explained and
provided support for the contention that the article contained false, misleading, unfair and biased
statements.
According to Farber, not simply "56 Errors" but the attacks on her article in general were
made "by a group of AIDS activists and researchers who were associated with . . . [Jefferys'
organization] TAG . . . ." Complt ¶ 16. TAG, she states, "has engaged in vicious and
relentless attack on anyone who highlights the toxicities of the . . . drugs that are the basis of its
business operations in the United States and around the world, particularly the developing
world." Id. She also states that TAG holds itself out as an independent research and policy group
but actually is "funded by pharmaceutical companies profiting from the sale of drugs for HIV."
Id. According to Farber, nine scientists and doctors "not working in the AIDS industry"
determined that "56 Errors" was "absurdly biased" and full of "character assassination" and in
other respects without merit. Complt ¶ 17. Her current papers include a document by the
group Rethinking AIDS which responds to "56 Errors" and other criticisms of the Harper's
article. The complaint also attacks Dr. Galloalthough he is not a party to this action. See Complt
¶ 18.
The Semmelwiess Society International (www.semmelweiss.org)("SSI") is an organization
formed to support physicans, academicians, and health care providers who are falsely accused of
misconduct based on their status as whistleblowers. In 2008, SSI announced that during
"Whistleblower Week in Washington" the week of May 11-14, 2008, it was going to bestow
Clean Hands awards to Farber and Duesberg for their stance as HIV dissenters, which put them
at odds with the medical establishment. The complaint states that the basis of the award was the
Harper's article. Complt ¶ 19.[FN11]
According to the complaint, at this point, the three defendants all engaged in defamatory
conduct in an effort to prevent Farber from getting the award. In particular, as is relevant to this
motion, around May 12, 2008, Jefferys sent an email to Walter Fauntroy, a coordinator of
testimony for Whistleblower Week. The complaint identifies Jefferys as a "TAG operative."
Complt ¶ 21. The email stated:
These statements by Jefferys, according to Farber, are libelous because they falsely accuse
her of being a liar and of fraud, of altering quotes from scientific literature, and of falsely
representing published works on the topic. The complaint asserts that the statements are false and
are defamatory per se as injurious to her reputation as a journalist. She states that because a
member of Congress circulated the email to the organizations coordinating Whistleblowers
Week, she was dropped from the list of those scheduled to testify at Whistleblowers Week. Also,
SSI gave her the Clean Hands Award in a private setting instead of at a public ceremony.
"Defamation is defined as the making of a false statement of fact which tends to expose the
plaintiff to public contempt, ridicule, aversion or disgrace." Sandals Resorts Int'l, Ltd. v. Google,
Inc., 86 AD3d 32, 38, 925 N.Y.S.2d 407, 412 (1st Dept. 2011). Though a cause of action for
defamation exists whenever this allegedly occurs, constitutional restrictions apply if the plaintiff
is a public official or a public figure, if the defendant is a member of the media, or if the
statement relates to a matter of public concern. See Huggins v. Moore, 94 NY2d 296, 301, 704
N.Y.S.2d 904, 907 (1999). Though the defamation cases which raise these constitutional issues
and trigger a heightened level of scrutiny usually involve media defendants, the First Department
also has applied the higher standard where private defendants are involved, reasoning that
"[t]here is no reason . . . why the Constitution should . . . provide greater protection to the media
in defamation suits than to others exercising their freedom of speech . . . ." McGill v. Parker, 179
AD2d 98, 109, 582 N.Y.S.2d 91, 97 (1st Dept. 1992); see, e.g., Gross v. New York Times, 281
AD2d 299, 300, 724 N.Y.S.2d 16, 17 (1st Dept.)(applying malice standard to both media and
nonmedia defendants), lv denied, 96 NY2d 716, N.Y.S.2d (2001). To prevail in a defamation
action a public figure must establish, under a clear and convincing evidence standard, that the
defendant made the defamatory publication with knowledge of the falsity of the claims or
reckless disregard for the truth. Suson v. NYP Holdings, Inc., Index No. 300605TSN2006 (Civ.
Ct. NY March 31, 2008) (avail at 2008 WL 927985, at *8)(citing New York Times v. Sullivan,
376 U.S.254, 280 (1964)). If the statement relates to an issue of public concern, the plaintiff must
show "gross irresponsibility" under this standard. See Cottrell v. Berkshire-Hathaway, Inc., [*10]26 AD3d 786, 786, 809 N.Y.S.2d 714, 715 (4th Dept. 2006).
Moreover, although perhaps Jefferys overstates the impulse of the courts to summarily
dispose of defamation claims at the summary judgment phase — as Farber points out,
parties with meritorious claims should have their day in court — he is correct that, in
many instances, the matter is appropriate for early resolution. Courts deny summary judgment
when there are triable issues of fact, as Farber notes, but the general principles governing
summary judgment are viewed through the lens of the heightened standard, and heavy burden, a
plaintiff bears in a defamation action in which a public figure or a matter of public concern is
involved. In addition, in libel cases summary judgment is especially useful because "the threat of
being put ot the defense of [such] a lawsuit . . . may be chilling to the exercise of First
Amendment freedoms as fear of the outcome of the lawsuit itself." McGill, 179 AD2d at 106,
582 N.Y.S.2d at 96.
Jefferys argues that a higher level of scrutiny applies here for two primary reasons. He first
argues that Farber is either a public figure or a limited purpose public figure and, as such, she
must show that he acted with actual malice. See Huggins, 94 NY2d at 301, 704 N.Y.S.2d at 907.
Her failure to do so, he states, mandates dismissal of the claims against him. Farber counters that
she is not a limited purpose public figure — or that, at best, Jefferys has not established
her status as a public figure of any sort in his motion papers.
Two classes of individuals are considered "public figures" in defamation law. Individuals
with sufficient power and influence are public figures for all purposes. These individuals are
generally quite renowned. See Farrakhan v. N.Y.P. Holdings, Inc., 168 Misc 2d 536, 539, 638
N.Y.S.2d 1002, 1006 (Sup. Ct. NY County 1995). A limited purpose public figure, on the other
hand, "has thrust [herself] to the forefront of particular public controversies in order to influence
the issues involved." Huggins, 94 NY2d at 301-02, 704 N.Y.S.2d at 907. A person also can be
deemed a limited purpose public figure with respect to a particular controversy, if she has
become an influential voice on this single issue. Horowitz v. Mannoia, 10 Misc 3d 467, 470, 802
N.Y.S.2d 917, 921 (Sup. Ct. Nassau County 2005). Moreover, "where the facts are not in dispute,
the issue of whether a plaintiff, in a defamation action, is a public figure is one for the court to
determine." O'Neil v. Peekskill Faculty Ass'n, 120 AD2d 36, 43, 507 N.Y.S.2d 173, 179 (2nd
Dept. 1986), lv dismissed, 69 NY2d 984, 516 N.Y.S.2d 1027 (1987); see Krauss v. Globe Intern
Inc., 251 AD2d 191, 674 N.Y.S.2d 662 (1st Dept. 1998).
Despite Farber's widespread reputation, the Court does not find that she is a public figure for
all purposes. However, the Court does find that she is a limited purpose public figure. To reach
this conclusion, the Court evaluates "whether there was a particular public controversy that gave
rise to the alleged defamation, the nature and extent of the plaintiff's participation in that
controversy, and the relation of the alleged defamation to the controversy." Horowitz, 10 Misc 3d
at 470, 802 N.Y.S.2d at 921. Thus, real estate sponsors and developers involved in a
controversial local decision to construct clubhouses in a residential community were deemed
limited purpose public figures because, among other things, they appeared at a meeting of the
residents to answer questions about the issue and the alleged defamation related to their handling
of the controversy. Id. at 470-71; 802 N.Y.S.2d at 921. A plaintiff who failed to report a past
conviction on an application to operate a solid waste facility also was considered a limited
purpose public figure because he engaged in business activities of public concern and therefore
[*11]"thrust himself into the forefront of a public controversy."
Cholowsky v. Civiletti, 69 AD3d 110, 115-16, 887 N.Y.S.2d 592, 597 (2nd Dept. 2009).
As described in greater detail above, the complaint in this action states that Farber is a
journalist who has covered AIDS for various publications since the 1980s — most notably
for Spin, in her column "Words from the Front" between 1986 and 1994. Complt ¶¶
10. She further indicates that her reputation is widespread enough that she speaks at schools and
conferences, that her work is used in courses, and that she has participated in panels with prize
winning scientists on this very subject. Complt ¶ 13. Also, as her brief in opposition to the
converted motion notes, a former website which attacked the HIV dissenters prominently
featured a photograph of Farber which had been splattered in blood; she annexes a copy of the
photograph to her opposition papers. Although her purpose is to show the animus of the
traditional HIV/AIDS community and impugn defendants' motives in making their statements
against her, it also illustrates dramatically that, to AIDS activists angry at the dissenters, Farber
has a celebrity status and notoriety.
Finally, Farber acknowledges that the article "Out of Control" appeared in Harper's
magazine, which has a widespread reputation; that the publication of "Out of Control" generated
enormous attention and publicity not only for the article but for her as its author, resulting in a
series of articles about both; that internationally known members of the traditional HIV/AIDS
community felt compelled to publish a lengthy document refuting the contentions in "Out of
Control." Complt ¶¶ 16-17. Moreover, and very significantly, Farber was at the center
of the particular public controversy which gave rise to the alleged defamation — the
issuance by an international organization of its Clean Hands Award to her and Duesberg during
National Whistleblowers' Week in Washington, D.C.. Complt ¶¶ 19-20. The
complaint acknowledges that the Week itself involved current and former members of Congress
and members of several coordinating organizations. Complt ¶ 20. Furthermore, the
complaint acknowledges that the decision to issue the award to her was significant enough that
Jefferys' email made its way to, among others, a member of Congress, major newspapers
including the Washington Post, and the organizers of Whistleblowers' Week. Complt ¶ 22.
Thus, Farber's own complaint and the papers she submits in opposition to this motion establish
that, in the limited context of issues surrounding AIDS and HIV dissenters and the question of
whether HIV causes AIDS, she is a public figure.
Jefferys' second argument for applying a heightened level of scrutiny is that the alleged
defamation involves a matter of public concern. Where a matter of public concern is involved,
courts have the central goal of "assuring full and vigorous exposition and expression of opinion."
Immuno AG. v. Moor-Jankowski, 77 NY2d 235, 255, 566 N.Y.S.2d 906, 917 (1991). To
determine whether the content is "within the sphere of legitimate public concern" a court must
consider "the context of the writing as a whole" and examine its "content, form and context."
Huggins, 94 NY2d at 302, 704 N.Y.S.2d at 908. As indicated earlier, if a matter is one of public
concern even a private figure must show "that the publisher of the allegedly defamatory
statement acted in a grossly irresponsible manner without due consideration for the standards of
information gathering and dissemination gather ordinarily followed by responsible parties.'"
Cottrell, 26 AD3d at 786, 809 N.Y.S.2d at 715 (quoting Chapadeau v. Utica Observer-Dispatch,
38 NY2d 196, 199, 379 N.Y.S.2d 61, 64 (1975)); see Porcari v. Gannett Satellite Information
[*12]Network, Inc., 50 AD3d 993, 856 N.Y.S.2d 217 (2nd Dept.
2008). A higher level of scrutiny applies because, though it is important to protect to a party's
reputation from defamatory statements, Courts must be "vigilant about the potential chilling
effect' the threat of defamation actions can have on public debate." 600 West 115th Str. Corp. v.
Von Gutfeld, 80 NY2d 130, 137, 589 N.Y.S.2d 825, 828 (1992).
Finally on this point, the Court notes that letters to the editor have a "public forum function .
. . closely related in spirit to the marketplace of ideas. . . ." Immuno AG. v. Moor-Jankowski, 77
NY2d at 255, 566 N.Y.S.2d at 917. The values of this system "are best effectuated by according
defendant some latitude to publish a letter . . . on a matter of legitimate public concern-the letter's
author, affiliation, bias and premises fully disclosed, rebuttal openly invited-free of defamation
litigation." Id. Here, where public discourse about the Clean Hands Award was invited, where the
Award itself and the issues discussed in the article are of public concern, and where Jefferys
simply participated in this discourse, the Court concludes that similar values are at stake.
It does not appear that Farber challenges the contention that the matters at hand are of public
concern. Moreover, it does not appear that she can in good faith assert that the issues to which
she has devoted the majority of her career as a journalist are not issues of public concern and/
importance. Questions concerning the cause of and treatment for AIDS, which has caused an
international health crisis for the past few decades, are clearly of public concern. The huge fallout
from Farber's article shows the public nature of the controversy, as it generated articles in several
well known magazines and newspapers and resulted in the highly publicized "56 Errors"
document. The Semmelweiss Society's Award, the national attention afforded to Whistleblower's
Week, and the fact that members of Congress were involved and had input regarding the event
— all of this show that the award, too, was a matter of public concern. Given this, even if
Farber were deemed a private rather than a public figure, at the very least she must show that
Jefferys acted in a grossly negligent manner.
Because the Court concludes she is a public figure in the context of this issue, Farber bears
the burden upon Jeffery's converted summary judgment motion to produce evidence not only
showing the purported falsity of the statement but showing that Jefferys made those false
statements with actual malice. See Roche v. Hearst Corp., 53 NY2d 767, 769, 439 N.Y.S.2d 352,
353 (1981). In this converted summary judgment motion, Jefferys persuasively claims that
plaintiff cannot raise an issue of fact as to malice. For the purpose of a defamation claim, it is
insufficient to show that a defendant disliked the plaintiff and harbored ill will against her.
Farrakhan v. N.Y.P. Holdings, Inc., 168 Misc 2d 536, 543-4, 638 N.Y.S.2d 1002, 1009 (Sup. Ct.
NY County 1995). Indeed, even "spite, hostility or deliberate intention to harm" is insufficient to
show malice. Greenbelt Cooperative Pub. Ass'n v. Bresler, 398 U.S. 6, 10-11 (1970) (concluding
that jury charge to the contrary was error of constitutional magnitude); see Kipper v. NYP
Holdings Co., Inc., 12 NY3d 348, 355 n4, 884 N.Y.S.2d 194, 198 n4 (2009). For actual malice to
exist a defendant must have "published the false information about plaintiff with knowledge that
it was false or with reckless disregard of whether it was false or not." Sweeney v. Prisoners' Legal
Serv. of New York, Inc., 84 NY2d 786, 792-93, 622 N.Y.S.2d 896, 899 (1995).
Moreover, this Court has "a constitutional duty to exercise independent judgment and [*13]determine whether the record establishes actual malice with
convincing clarity." Freeman v. Johnston, 84 NY2d 52, 56, 614 N.Y.S.2d 377, 379
(1994)(citations and internal quotation marks omitted). This standard applies even in the context
of a motion for summary judgment. Id. at 57, 614 N.Y.S.2d at 379. Indeed, before a court allows
a case to proceed to trial, it must find "sufficient evidence favoring the moving party for a jury to
return a verdict for that party. . . . If the evidence is merely colorable . . . or is not significantly
probative . . . , summary judgment may be granted." Id. (citations and internal quotation marks
omitted). The fact that this burden is considered daunting does not lessen it. See Gross v. New
York Times Co., 281 AD2d 299, 299, 724 N.Y.S.2d 16, 17 (1st Dept.), lv denied, 96 NY2d 716,
730 N.Y.S.2d 790 (2001).
Here, Jefferys argues that (1) his statements about Farber's inaccuracies as a reporter are true,
(2) he did not act with reckless disregard of the truth, and (3) he was not grossly negligent in
sending the email at issue. In support, Jefferys relies on his extensive background researching
HIV and AIDS related issues, which this Court sets forth in the background section of this
decision. See supra at pp. 3-4. In addition, he submits a plethora of materials to support his
claims. Among other things, he annexes "56 Errors," to which he was a signatory along with
several eminent researchers in the field. See supra at p. 13. Not only does "56 Errors" state that
many of the statements in the Harper's article are misleading, false, unfair or biased, but it is
heavily annotated with sources for these numerous refutations. In addition, Jefferys annexes The
Durban Declaration, which states that HIV indisputably causes AIDS; the declaration was signed
by over 5000 respected members of the traditional HIV/AIDS community when it first was
generated in 2000. There are articles from publications as prestigious in the field as The New
England Journal of Medicine, the Morbidity and Mortality Weekly Report, and the Journal of the
American Medical Association, among others. In particular he submits articles which support the
conclusion that nevirapine and other medications reduce the risk of transmission of HIV from
pregnant women to their children in utero. In his current affidavit, Jefferys uses these documents
to refute statements contained in "Out of Control" and other of Farber's writings. In particular, he
quotes articles of Farber's which purportedly report the results of various studies, and then quotes
the medical journals and studies themselves in an effort to show eight inaccuracies and/or
misleading statements in Farber's articles ("the eight inaccuracies").
Farber clearly disputes the definitiveness of these studies; as stated, one of her goals as a
journalist is to show these studies are not definitive and to raise questions which hopefully lead
to further exploration. However, "so long as the [defendant] relied on at least one authoritative
source and had no good reason to doubt the veracity of that source or the accuracy of the
information he or she provided, even if that information ultimately proved to be incorrect or
false, the publisher has appropriately discharged its duty." Visentin v. Haldane Cent. School
Dist., 4 Misc 3d 918, 922, 782 N.Y.S.2d 517, 520 (Sup. Ct. Putnam County 2004). Here, Jefferys
relied on numerous reliable sources. Thus, Jefferys did not exhibit constitutional malice or gross
irresponsibility when he relied on them and on his own prior professional research to reach his
conclusions about Farber's work as a journalist in "Out of Control" and her other writings. See
also Cottrell, 26 AD3d at 786-87, 809 N.Y.S.2d at 715 (reliance on court pleadings was not
grossly irresponsible). For similar reasons, Farber's attempts to show that Jefferys is guilty of
committing these inaccuracies — that he "spun" or misunderstood the documents he
accuses her of "spinning" or misunderstanding — are inadequate to show that his reliance
on these [*14]authorities constitutes constitutional malice or
manifests gross irresponsibility. Also for similar reasons, Farber cannot show that Jefferys
exhibited gross negligence or malice when he relied on his research and experience. See Crucey
v. Jackall, 275 AD2d 258, 258-59, 713 N.Y.S.2d 20, 20 (1st Dept. 2000).
Moreover, the parts of Farber's affidavit which criticize Jefferys' critique of her research
contain comments which actually militate in favor of dismissal of the claims against Jefferys. She
states that he "makes very tall mountains out of nothing or tiny anthills," Farber Aff. at ¶
20; that he "takes issue" with statements in her articles, id. at ¶ 26; that he "gives his own
opinion" about efficacy of AZT, id. at ¶ 29; that he counters her accurate assessment of the
results of a long term study with the results of a short term study — an implicit contention
that he misunderstood or conflated the data, see id. at ¶¶ 37-39; and that he quibbles
and misses the larger point of one of her statements, id. at ¶ 40. Together, this suggests that,
if Farber were correct, Jefferys is wrong or confused about her writings or else expressing his
opinion about them. This is not sufficient to show malice or gross negligence.
Farber objects particularly to Jefferys' use of the term "liar" and his claim that she has twisted
facts and distorted the truth. She states that, as she is a journalist, these contentions are especially
damaging to her. For all the reasons stated above, the Court finds that Jefferys was not grossly
negligent or malicious in the context of defamation law when he asserted that Farber twisted the
facts and data and presented a version of the facts that lacked credibility. As for the word "liar," it
is a much closer call; it is one thing for Jefferys to legitimately believe, and publicly state in
impassioned terms that Farber spreads inaccurate information about AIDS recklessly, often
misunderstanding or distorting the medical and scientific evidence. To call her a liar, however, is
different; as she states, her reputation as a journalist can be damaged by this contention. See, e.g.,
Brach v. Congregation Yetev Lev D'Satmar, Inc., 265 AD2d 360, 696 N.Y.S.2d 496 (2nd Dept.
1999). However, while Jefferys does not argue that his email consists of unprovable statements
of opinion — in fact, he declares the opposite — in the brief on his pre-converted
motion he notes the greater leeway his speech has where, as here, a matter of public concern.
Furthermore, he states that in the context of the heated public debate on this issue, his use of the
words "liars" and "frauds" are nonactionable opinion.
After careful consideration, the Court agrees with defendant Jefferys. The First Department
recently noted that "[e]ven apparent statements of fact may assume the character of statements of
opinion, and thus be privileged, when made in public debate, heated labor dispute, or other
circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or
hyperbole." Sandals, 86 AD3d at 41-42, 925 N.Y.S.2d 407, 414 (quoting Steinhilber v.
Alphonse, 68 NY2d 283, 294, 508 N.Y.S.2d 901 [1986]). Hyperbolic rhetoric which intends to
discredit a rival also is not actionable. Joyce v. Thompson, Wigdor and Gilly LLP, No. 06 Civ.
15315(RLC)(GWG)(S.D.NY June 3, 2008)(avail at 2329227, at *10). Thus, in the aftermath of a
bitter labor dispute the use of the word "scab" was deemed rhetoric and not actionable.
Steinhilber, 68 NY2d 283, 508 N.Y.S.2d 901. In another action involving a public and heated
fight between various parties, the First Department found that both the use of the word "criminal"
and the accusation that the plaintiff intended to destroy the beaches in the community were
nonactionable rhetoric. Galasso v. Saltzman, 42 AD3d 310, 839 N.Y.S.2d 731 (1st Dept. [*15]2007).
"The infinite variety of meanings conveyed by words — depending on the words
themselves and their purpose, the circumstances surrounding their use, and the manner, tone and
style with which they are used — rules out . . . a formulistic approach." Steinhilber, 68
NY2d at 291, 508 N.Y.S.2d at 905. Courts therefore are accorded the discretion and flexibility to
consider all relevant factors in reaching a conclusion on the issue of whether a particular word is
defamatory in a given instance. See id. at 291-92, 508 N.Y.S.2d at 905. Thus, although at times it
has been deemed actionable under the defamation laws, the use of the word "liar" also has been
considered rhetoric when uttered in the context of some heated public debates. See e.g., Present
v. Avon Products, Inc., 253 AD2d 183, 687 N.Y.S.2d 330 (1st Dept. 1999); Ram v. Moritt, 205
AD2d 516, 517, 612 N.Y.S.2d 671, 672 (2nd Dept. 1994).
In the case at hand, all the documents, including Farber's complaint, contains dramatic,
heated and frequently pejorative language. Farber herself describes Jefferys as an "operative" in
her complaint and in her affidavit. See Complt at ¶; Farber Aff. at ¶ 17. Through the
various references to him and other "so-called activists" in the Harper's piece, she strongly
suggests that Jefferys and others lie, twist facts or hide data in order to remain in the good graces
of the pharmaceutical companies which support them financially. She also accuses him of lying
about whether there is a debate as to the cause of AIDS. See Farber Aff. at ¶ 43. Indeed, in
her affidavit in support of her opposition, Farber hurls accusations at Jefferys which are strikingly
similar to those he has hurled at her. Moreover, as described already in detail, the language in the
complaint, in the Farber and Jefferys affidavits, and in the email which forms the basis of
Farber's complaint are typical examples of the accusations which some of the dissenters and
some members of the traditional HIV/AIDS community trade back and forth. Therefore, the
Court finds the language at issue nonactionable, and it does not find Farber's well-crafted
arguments to the contrary persuasive.
As part of her opposition to the converted motion, Farber submits the affidavit of Clark
Peters, founder and principal investigator of The Office of Medical & Scientific Justice
(OMSJ)(http://www.omsj.org/). Peters has an honorable background in the Marine Corps and the
Los Angeles Police Department. However, his affidavit does not further Farber's arguments.
Peters holds himself out as an expert in evaluating Farber's integrity based on his "more than
2500 interviews and physical examinations of heroin, cocaine and methamphetamine addicts,"
adding — incorrectly and in a conclusory fashion — that courts generally "take
judicial notice that drug addicts are pathological liars." Peters Aff. at ¶ 5. He also points to
the fact that he is a licensed commercial pilot and scuba diver as evidence of his general acumen.
Id. at ¶ 6. None of these qualifications makes him particularly suited to evaluate the issues
at hand.
Peters' comments about medical and scientific corruption are not directly pertinent to the
issue of whether Jefferys acted with constitutional malice or gross irresponsibility when he sent
the email in question. That is, Peters presents no evidence which connects the alleged medical or
scientific corruption to Jefferys. His observation of Farber, which led him to conclude that she
has not manipulated evidence, has no bearing on whether Jefferys defamed her. His comments
about the allegedly defamatory claims and nefarious conduct of the non-moving defendants are
not pertinent to Jefferys.
[*16] Apparently in an attempt to show Jefferys' malice
against Farber, Peters sets forth comments Jefferys allegedly posted about Farber's award on
various websites — which, for the sake of argument, the Court accepts as accurate
depictions of Jefferys' postings and emails. For example, in encouraging people to protest the
decision to bestow the Clean Hands Award upon Farber, Jefferys allegedly stated that "the
simplest talking points are that Farber and Duesberg aren't whistleblowers, they're liars. The
examples are many, the quote about stopping ART saving lives is probably the most egregious."
Though this and the other quoted comments demonstrate a genuine desire to keep Farber from
getting the Clean Hands Award, Jefferys acknowledges that he did not want Farber to receive the
award. This goal does not show malice in a constitutional sense unless Jefferys also demonstrated
reckless disregard for or gross indifference to the truth. The quotes Peters ascribes to Jefferys in
his affidavit, if accurate, suggest that Jefferys sincerely believed in the truth of what he was
saying.Peters has not presented any data which supports his claim that "Jefferys' intent was . . .
part of a sustained and coordinated effort among the pharmaceutically-funded activists . . ." to
silence Farber and Duesberg although he knew he was uttering lies about them. Id. at ¶ 75.
Other comments by Peters also do nothing to enhance Farber's argument.
Finally, Farber points out that often
there has been discovery at the time that a court determines a summary judgment motion even in
the context of a defamation case. On this basis, she contends summary judgment is premature.
However, it is permissible for a court to convert a preanswer motion to dismiss to one for
summary judgment on notice to the parties where the parties have ample evidentiary support in
support of their contentions. See Four Seasons Hotels Ltd. v. Vinnik, 127 AD2d 310, 318, 515
N.Y.S.2d 1, 6-7 (1st Dept. 1987). In this instance the parties have assembled volumes of data
relating to the issues at hand — both in preparation for this motion and during the course
of their careers studying HIV and AIDS and the medications used to treat them. The materials
they have submitted to the Court, along with Jefferys' longstanding and public positions on the
relevant issues — which, moreover, he has established through the annexed documents
and references to various websites — are sufficient to enable the Court to determine as a
matter of law that Jefferys has not been grossly negligent and has not acted with constitutional
malice.
For the reasons above, the Court concludes that Farber is a limited purpose public figure, and
thus she must raise a triable issue as to Jefferys actual malice. As she cannot do so, the Court
dismisses all claims asserted against him. Alternatively, the Court notes that the questions at
issue are of great public concern and, in light of the overwhelming amount of academic,
scientific and medical evidence on which Jefferys relies, Farber cannot show he made his
statements with gross irresponsibility even though she vigorously disagrees with him. As the
Court resolves the motion on these bases, it does not reach Jefferys' argument that his statements
were not defamatory because they are true; at any rate, this issue is best addressed by experts in
the medical and scientific community. The Court notes that it has considered all the other parties'
contentions although it does not include every single point in this discussion.
Accordingly, for the reasons above, it is
ORDERED that the motion for summary judgment is granted and the claims as asserted
against defendant Jefferys are severed and dismissed.
[*17] _____________________________
IV.The Response to "Out of Control"
V.The Semmelweiss Society International and the Clean Hands Award, and Jefferys
Allegedly Libelous Statements.
It is my understanding that you have accepted Celia Farber and Peter Duesberg to
give testimony at your tribunal. These individuals are not whistleblowers, they are simply liars
who for many years have used fraud to argue for Duesberg's long-discredited theory that drug use
and [*9]malnutrition — not HIV — cause AIDS. I
can provide many, many examples, including their altering of quotes from the scientific
literature, false representations of published papers, etc. They use instances of genuine medical
malpractice simply as ammunition to support their erroneous ideas about HIV and AIDS (which
Duesberg has said is "caused by a lifestyle that was criminal twenty years ago"). The inclusion of
these individuals will, regrettably, discredit and demean your efforts to support the very real
issues of recrimination against legitimate whistleblowers.
Sincerely,
Richard Jefferys
(quoted in complaint at ¶ 21)(emphasis removed). According to the complaint,
the letter was circulated to members of Congress and to the media, among others.
I.Defamation
II.Limited Purpose Public Figure and Matter of Public Concern
B.Malice or Gross Negligence
C.Rhetoric
D.The Peters Affidavit
DATED: November 2, 2011Louis B. York, J.S.C.
Footnote 1: The discovery of HIV also was
fraught with controversy. In 1983 Drs. Luc Montagnier and Francois Barre-Sinoussi of the
Pasteur Institute in Paris isolated HIV. The following year, Dr. Robert Gallo of NCI publicly
identified HIV as the virus that caused AIDS. Gallo claimed to have discovered the virus, a
contention which launched a bitter dispute between the French and American scientists. Finally,
United States President Ronald Reagan and French President Francois Mitterrand negotiated a
solution. The Pasteur Institute was credited with the discovery of HIV, and Gallo's laboratory
was credited with linking HIV to AIDS. Only Montagnier and his colleague Barre-Sinoussi
received the 2008 Nobel Prize for the discovery of HIV.
Footnote 2: The information about TAG
comes from various portions of its website.
Footnote 3: A single use dosage ultimately
was found to be most effective and safe for both the mother and in utero child.
Footnote 4: In his affidavit, Jefferys
criticizes the Court for not acknowledging in its interim order that HIV unarguably is the cause of
AIDS. See Jefferys Aff. at ¶ 20. However, in making this comment, he misunderstands the
purpose of a motion to dismiss under CPLR § 3211. For the purpose of that earlier motion
the Court was bound to accept the allegations in the complaint as true, without regard to medical
or scientific findings outside its borders. See CPLR § 3211.
Footnote 5: Their detractors call these
individuals "AIDS Denialists," a pejorative expression which suggests that this group denies the
existence of AIDS. Some, but not all, of the dissenters, are denialists. Some analogous
pejoratives are the phrases "AIDS Vigilantes" and "so-called AIDS activists," which Farber and
others use to denote Duesberg's detractors. This Court uses the more neutral expressions "the
traditional HIV-AIDS community" for those who share Jefferys' point of view, and "HIV
dissenters," which was used in a study of Dr. Duesberg's theories not cited by the parties, for
those who support Duesberg and Farber's position. Cohen, Jon. "The Duesberg Phenomenon,"
Science, Vol. 266, 1642-49 (9 Dec 1994).
Footnote 6: Mullis won the 1993 Nobel
Prize for Chemistry along with Professor Michael Smith for their independent work in
developing the polymerase chain reaction.
Footnote
7:http://deanesmay.com/wp-content/uploads/2010/07/The_Passion_of_Peter_Duesber
goriginal1.pdf.
Footnote 8:These detractors claim the
incident was a demonstration of gross medical negligence in the treatment of Ms. Hafford, and is
not dispositive of the effectiveness of nevirapine, the connection between HIV and AIDS, or the
success of drug trials on a general level
Footnote 9: The article's detractors note that
because the use of medication is crucial to the well being of HIV positive patients, it would be
unethical to prescribe a placebo and thus deprive the patients of necessary treatment.
Accordingly, AZT rather than a placebo was used.
Footnote 10: Today, Dr. Kuritzkes is
listed on Harvard's website as a full professor.
Footnote 11: Farber's current affidavit
indicates that initially she and Dr. Fishbein were to receive the award but that, when Fishbein
declined, SSI decided to give the second award to Duesberg instead.